Williams v. Frederickson Motor Exp. Lines, Inc.

• Decision Date: 23 May 1928
• Docket Number: 461.
• Parties: WILLIAMS v. FREDERICKSON MOTOR EXPRESS LINES, Inc., et al.
• Court: North Carolina Supreme Court

143 S.E. 256

195 N.C. 682

WILLIAMS v. FREDERICKSON MOTOR EXPRESS LINES, Inc., et al.

No. 461.

Supreme Court of North Carolina

May 23, 1928

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by J. H. Williams against the Frederickson Motor Express Lines, Inc., and another. From an order overruling defendants' demurrer, defendants appeal. Reversed.

John M Robinson, Thaddeus A. Adams, and S.E. Vest, all of Charlotte for appellants.

D. B Smith and James A. Lockhart, both of Charlotte, for appellee.

CLARKSON J.

This is an action for actionable negligence instituted by plaintiff against the Frederickson Motor Express Lines, Inc., and the United States Fidelity & Guaranty Company.

It is alleged in the complaint:

"The defendant the United States Fidelity & Guaranty Company is, and at the time of the matters hereinafter alleged was, a corporation having its principal office in the city of Baltimore, state of Maryland, and duly licensed to engage in the business in the state of North Carolina, and to issue and become bound upon bonds and policies of casualty, accident, and indemnity insurance, and particularly upon that class of bonds required by chapter 50, Public Laws of North Carolina 1925; that in accordance with the provision of chapter 50 of Public Laws of North Carolina of 1925, the defendant United States Fidelity & Guaranty Company, on May 7, 1927, issued its bond or policy of insurance for the protection of the public against injuries received through the negligence of its codefendant, which said bond or policy of insurance was in force at the time of the matters herein complained of and covered the motortruck of its codefendant, which said motortruck is hereinafter referred to."

The defendant demurred on the ground that this joinder was prohibited by section 6 of chapter 136 of the Public Laws of 1927, the court below overruled the demurrer, and the defendants appealed to this court. We think the demurrer should have been sustained.

This court, in Harrison v. Transit Co., 192 N.C. 545, 135 S.E. 460, in construing Public Laws 1925, c. 50, § 3 (6) (g), said, at page 547 (135 S.E. 461):

"But under our statute, which is made a part of the bond or policy, a judgment against the carrier is not prerequisite to a suit on the bond. The Legislature no doubt intended to obviate the necessity of double litigation, for it provided that a carrier by automobile should give a bond in a surety company in an amount to be fixed by the Corporation Commission (unless in lieu thereof national, state, county, or municipal bonds were given), conditioned to indemnify the public as well as passengers receiving personal injuries by any act of negligence, and that this bond should be for the benefit of and subject to action thereon by any person protected thereby who has sustained actionable injury. The carrier and the surety company are thus made jointly liable for the actionable negligence of the assured."

Public Laws 1927, c. 136, § 6, after prescribing that the commission shall, in granting franchise certificate to operate passenger and freight motor lines, provide for requiring such applicants to procure and file with the commission proper liability and property damage insurance, insuring passengers and the public receiving personal injury by reason of an act of negligence arising from the operation of any motor vehicle by the applicant upon the public highways of the state, etc., provides:

"In any action in the

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